Hastings v. Grimshaw

Knowlton, J. In this case, it is unnecessary to consider particularly the deeds under which the plaintiff derived his title. It is enough to say, that, on April 20, 1888, he was the owner of the locus described in the declaration, so far as there could be private ownership of that property, and that he was also the owner of the land which he conveyed on that day to Thomas B. Wilcox, which was subsequently conveyed to the City Manufacturing Company, under whose license the defendant justifies the alleged trespass. The question presented is whether by that deed the plaintiff’s rights in the property which was used as a dock passed to Wilcox, and, if not, whether after the conveyance of the adjacent land to low-water mark, or to a point below low-water mark, he could still retain a title in the dock between that land and the channel such as would enable him to maintain a suit for a trespass. His title to the property used as a dock was originally acquired under the St. of 1806, c. 18, which is printed in a footnote to page 209 of Volume 108 of the Massachusetts Reports. Under that statute, the owners of land on Acushnet River in the neighborhood where his lot is situated are authorized “ to erect, continue, and maintain wharves parallel with the line of their several lots, as they abut upon said river; said wharves to extend $0 the channel of said river, if the owners of said lots [501] think proper”; and they are given like authority to provide docks within the same limits. In Hamlin v. Pairpoint Manuf. Co. 141 Mass. 51, is the following language in reference to this act: “ This [statute] operated as a legislative grant to the owners of lots of an interest in the soil between their lots and the channel of the river. Whether it gave them an absolute fee without any restrictions, and whether, since the passage of the St. of 1866, c. 149, they are subject to the regulations of the Harbor Commissioners, and to what extent, it is not necessary to consider in this case. The act certainly gave them a possessory title for the purpose of building wharves, sufficient to enable them to maintain trespass if their rights are invaded.” See also to the same effect Haskell v. New Bedford, 108 Mass. 208. This was an additional right1 of property outside of the former land of each of the riparian proprietors, created by the statute in favor of those who then owned the lots. It was a title to the adjacent land, and to the water over it, subject to certain rights in the public. There is no good reason why a large lot held under such a title cannot be carved up and conveyed in different parcels, as flats which are held under a title of a similar kind and originating in a similar way may be separated from the land above and be sold in different parts. Storer v. Freeman, 6 Mags. 435. Mayhew v. Norton, 17 Pick. 357, 360. Porter v. Sullivan, 7 Gray, 441. See also, for adjudications in regard to similar titles, Goodsell v. Lawson, 42 Md. 348, 373; Power v. Tazewells, 25 Grat. 786; Norfolk v. Cooke, 27 Grat. 430; Clement v. Burns, 43 N. H. 609; Fitzgerald v. Faunce, 17 Vroom, 536, 596, 597. We are of opinion that the plaintiff might, if he chose, sell the land above high-water mark, or sell that and a part of the land covered with water, and retain his wharf and his dock, or any part of either of them. ¡ It is very clear that he did not intend to sell the dock. His deed to Wilcox described the granted premises by a boundary which plainly excluded the dock. Other rights and privileges were expressly given in connection with the property sold, and it is therefore implied that he did not intend to give any in the dock, except perhaps the right to pass over it to gain access to the property sold. [502] The plaintiff having a right to retain the dock for himself when he sold the adjacent land, and having intended to retain it, and having used apt words in his deed to express his intention as the owner of it, the defendant was a trespasser in the use which he made of it, the instructions of the court were correct, and the verdict was rightly returned for the plaintiff. Judgment on the verdict.